The Department of Homeland Security (DHS) announced the so-called ‘no-match’ rules (which told employers what to do if the Social Security number provided by a new hire didn’t match the number in the feds’ database) in 2007. Controversy and legal battles have prevented the rule from ever going into effect.

Now, it’s officially off the books. A regulation was published in the Federal Register on October 7 rescinding the rule.

The DHS announced it will focus on promoting the use of E-Verify as the mechanism for preventing the employment of illegal immigrants.

When the feds said their new immigration strategy was to crack down on employers’ hiring and record-keeping practices, they weren’t kidding.

Last week, U.S. Immigrations and Custom Enforcement (ICE) told 652 employers their I-9 forms were being audited. That’s more than the number of audits ICE conducted in the entire previous fiscal year. In addition to I-9s, many of the audits will also include subpoenas for EINs, payroll records and correspondences with the Social Security Administration regarding no-match letters.

The nationwide inspection follows an April announcement that ICE planned to focus the majority of its resources on prosecuting employers who hire illegal immigrants.

The list of companies being audited hasn’t been released. ICE has described the effort as a “first step,” meaning there will likely be more mass inspections in the near future.

What should HR managers do if they get a Notice of Inspection (NOI) from the feds?

Preparation is key. Employers must act quickly — the NOIs generally require HR to turn over all I-9s within three business days.

If I-9 records don’t pass muster with ICE, the agency could launch a criminal investigation. But even if there are no criminal charges, employers could face civil fines for faulty record-keeping.

An audit doesn’t always mean charges or fines are coming. After receiving an NOI, employers should:

• Respond quickly, even if it’s to ask ICE for a time extension
• Choose one point person to correspond with ICE — that will avoid any inconsistencies in the information given
• Notify all managers and employees who deal with I-9s and related documents
• Secure all applicable records — any missing documents could be seen as an attempt to destroy evidence or sabotage the investigation, and
• Consider conducting their own internal audit.

The U.S. Citizenship and Immigration Services (USCIS) announced the delay on Jan. 30 in response to a memorandum from the Obama administration asking federal agencies to freeze certain unimplemented regulations.

The rule updating the Form I-9 was set to take effect on Feb. 2, but was pushed back 60 days to April 3. In the meantime, employers should have been using the previous revision (dated 06/05/07 at the bottom of the last page).

That form should still be used until April 3.

Both the current version and the one employers will be required to switch to on April 3 are available from the USCIS here.

The U.S. Citizenship and Immigration Services (USCIS) announced the delay on Jan. 30, in response to a memorandum from the Obama administration asking federal agencies to freeze certain unimplemented regulations.

The rule updating the Form I-9 was set to take effect on Feb. 2, but has been pushed back 60 days to April 3.

Until then, employers should continue using the current version (dated 06/05/07 at the bottom of the last page) and be prepared to change forms on April 3.

Both the current version and the one employers will be required to switch to are available from the USCIS here.

The federal government recently announced that a new I-9 form is on the way. What’s going to change, and what does it mean to HR?

Here’s an overview of the changes in a set of new I-9 rules proposed last week by the U.S. Citizenship and Immigration Services (USCIS):

1. No expired documents

The biggest change: Expired documents will no longer be accepted for employment verification.

Right now, passports and all List B documents are acceptable even if they’re expired. But the Department of Homeland Security wants to do away with that, because expired IDs are more prone to fraudulent use and harder to verify as authentic.

2. Changes to the list of acceptable documents

The new rule also removes three documents from List A: the “Temporary Resident Card” (form I-688) and “Employment Authorization Cards” (Forms I-688A and I-688B). USCIS no longer issues those cards, and any that are in circulation have expired by now.

Instead, people are issued Form I-766, which remains on the list.

Also, the new I-9 will add to List A:

• the U.S. Passport Card to List A (a cheaper passport alternative only valid for land or sea travel that the Department of State started issuing earlier this year)
• foreign passports containing machine-readable visas, and
• passports from certain citizens of the Federated States of Micronesia and the Republic of the Marshall Islands.

3. Technical changes

The new form also makes a few minor, technical changes in language and wording. For example, references to “employment eligibility” are replaced with “employment authorization.” Also, employees can now attest to being a “noncitizen national of the United States” (people born in American Samoa and the former Trust Territory of the Pacific Islands).

When is it official?

How soon will you have to use the new form? The feds are collecting comments on the new rule now, after which a final rule will be published in the Federal Register. The new form will be required starting 45 days after publication. We’ll keep you posted when the date is set.

To view the new form and submit comments, go here.

If the Department of Homeland Security gets its way, employers will soon share a bigger part of the burden in the fight against illegal immigration. Here’s what HR needs to know.

First, some background:

In August of last year, the DHS issued new regulations clarifying the steps employers must take when they get a “no-match” letter from the Social Security Administration — a notice that the name and social security number provided by an employee don’t match up with the SSA’s database.

However, a federal court in California issued an injunction to keep the rule from going into effect.

Last week, the DHS revised its proposal by including additional information and asked the court to lift the ban. The rules themselves are the same as they were last year:

• When companies get a no-match letter, they have 30 days to check their own records and see if there’s a mistake on their part. If so, they need to send the SSA the corrected information and let them know the problem’s been solved.
• If there’s no error in the company’s paperwork, the firm must tell the employee about the notification. From that point, the employee has 90 days to clear up the problem with SSA.
• At the end of the 90-day period, the company has three days to complete a new I-9 form for the employee.

The DHS says if companies follow those guidelines, they won’t be charged with knowingly hiring unauthorized workers.

But if no corrective action is taken within 90 days, the company will be in violation of the law.

The court’s expected to reconsider the proposal soon. We’ll keep you posted.

Avoid bias claims

Another point HR needs to watch for: As one government agency wants companies to take a tougher stand on unauthorized workers, the courts are also ready to punish those who take it too far.

No-match letters on their own don’t prove that a worker is undocumented. Unless there’s other overwhelming evidence that an employee is breaking the law, employers should give workers the full amount of time allowed by the DHS to correct any mistakes.

Otherwise, the company is opening itself up to wrongful termination and discrimination suits.